The Rotterdam Rules and International Trade Law

Ioanna Magklasi

• Éditeur: Routledge
• Année: 2018
• ISBN:
  9781351629928
• Édition: 1
• Sujet: Law
• Sous-sujet: Law Theory & Practice

This book offers an original academic study of the Rotterdam Rules. It analyses the salient articles that will have an impact on international sale contracts governed by English law, including the most popularly used international law instruments, terms and standard sale contracts. Looking beyond the legal relationship of carrier-shipper and carrier-receiver, this book examines the important articles of the Rotterdam Rules that affect the ability of the trading protagonists to perform their sale contract.

1The Rotterdam Rules and international trade law

Background and characteristics

1.1Introduction to international trade law

By “international trade law”, we refer to the law of international commercial sales;¹ depending on the place of performance of the contract² there are sales on shipment terms (primarily CIF and FOB),³ on E (ex works) terms⁴ and D (delivery) terms.⁵

International trade is primarily maritime and is framed by a variety of contracts such as charterparties, bills of lading and contracts for the finance of sales, such as letters of credit. The multi-contractual and multipartite sea adventure needs to be enveloped with contractual, national and international frameworks so as to make overseas trade efficient, flexible and as predictable as possible.

There is an unquestionable contextual proximity of the sale contract to the contract of carriage for the transport on the one hand, and to the letter of credit for the financing of the sale on the other.⁶ The interfaces of a carriage contract with these contracts have also been recognised by the drafters of the RR.⁷Therefore, it is necessary to illustrate the two pillars of principles that are being entrenched in this book’s quest on the impact of the RR on international trade. These are first, the principles underlying the predecessors of the RR, and intricate underpinnings behind the RR in particular; and second, the fundamentals of international trade law.

1.1.1Principles of carriage of goods by sea conventions prior to the Rotterdam Rules

The RR is the most recent effort for a uniform and updated international carriage of goods (wholly or partly) by sea regime. Maritime carriage started being regulated⁸ at treaty level in the first place, because the global policy makers identified the need to protect cargo interests from the carriers’ tendency to abuse their strong bargaining power.⁹ However, this commercial finding has changed over the years. Hence, the need for the RR has emanated from the outdating¹⁰ of a series of previous conventions, namely the Hague Rules, the HVR and the Hamburg Rules, and the need for a modern, pragmatic instrument. Therefore, the principles behind the creation of the previous conventions generally remain relevant, subject to certain exceptions.¹¹ Below, we retrace the surge of the first convention in carriage of goods by sea in order to better understand the evolutionary progress towards the RR.

1.1.2Principles behind the Hague Rules

In the late 19th century, British courts were giving effect to broad liability exemption clauses, leaving carriers liable for virtually nothing, their own negligence included.¹² On the other hand, courts in the United States (US) had a more cautious approach towards freedom of contract clauses.¹³ Similarly, Japan’s Commercial Code took a restrictive approach against the carrier’s exemption of liability.¹⁴ Consequently, the global disharmony in international risk allocation in sea transit gave rise to international unification efforts.

However, even before the decision for a need of an international legislative solution, there were some important national initiatives to even out the contractual privileges of carriers over cargo interests. The Harter Act,¹⁵ for instance, was US legislation applicable to domestic and foreign trade,¹⁶ enacted to protect traders against extensive exemption liability clauses of the carrier and the trend of forum shopping.¹⁷ Australia,¹⁸ New Zealand¹⁹ and Canada²⁰ legislated similarly.

Nevertheless, these national legislative initiatives were not entirely satisfactory, as they only applied to domestic and outbound bills of lading.²¹ US and Australian traders receiving defective goods remained unprotected.²² It was asserted²³ that the difference between domestic legislations and an international convention would be the following: although the statutes were characterised by the aim to prevent carriers from contracting out of their obligations, the new unifying attempt would give rise to a code which would establish rights and immunities along with responsibilities and liabilities on both carriers and cargo interests.²⁴

The objectives behind the Hague Rules were twofold:²⁵ first, to flexibly allocate risks between carriers and cargo interests; and second, to refrain the carriers from abusing their superior bargaining position, through provisions affording protection to their counterparties.²⁶ Similar principles, but also varied drafting intentions led to the launch of the subsequent conventions, namely the HVR and the Hamburg Rules.

These conventions were intended to exist independently from domestic legislations, whereas today it is perhaps unavoidable that national or regional legislations would have to coexist with the RR, and this is an element of modernisation in the RR that did not exist in their predecessors. It is for the sake of this desired harmony and openness to future evolution, legislation and regulation that the RR do not provide exhaustive regulation in some areas and this is the modernisation element which underpins the RR.

Next, we delve into the intricate factors behind the emergence of the RR.

1.1.3Principles behind the Rotterdam Rules

Since 1920, when the Hague Rules were adopted, until the 1990s, when deliberations on a modern successor for “maritime plus” carriage emerged, the needs and practices of worldwide trade had changed. It can be argued that the international texts which came after the Hague Rules were liability schemes for the loss of or damage to the goods, and not deterrents against the carrier’s potential for abuse. There was also a general aim to establish a regime striking the proper balance between carriers and cargo interests,²⁷ which was not fulfilled. The reason for this was that courts adjudicated by trying to be consistent with several aspects of their national laws rather than with the expected “transnational” aim to resolve problems of interpretation with a view to properly balancing the rights of carriers and cargo interests in an internationally uniform way.²⁸

The laudable aim behind the RR was to update the law on maritime – and ideally multimodal – carriage and to fill the gaps of existing conventions in carriage of goods by sea, while achieving a broad consensus. Ultimately, the RR aspired to give robust solutions to the practical needs of modern commerce.²⁹ Trade in the days before the deliberations for the RR was highly characterised by the surge of containerisation³⁰ and the rising trend of paperless contracting.³¹ The scope of liability of the carrier under the HVR had also become outdated, since carriers started receiving and delivering goods beyond the “tackle to tackle” spectrum, for example to and from the trader’s warehouse.³² The need for uniformity is clear in the preamble to the RR:

Noting that shippers and carriers do not have the benefit of a binding and balanced universal regime to support the operation of contracts of carriage involving various modes of transport.³³

Also derived from the preamble are the other underpinnings of the RR:³⁴ promotion of legal certainty; encouragement of trade development for all parties and enhancement of efficiency; and certainty and commercial predictability in the international carriage of goods.³⁵ As we shall see, these are also the motivations of harmonisation undertaken by UNCITRAL.³⁶

The philosophy of the RR has been characterised as pragmatic.³⁷ This is suggested by a close attention to their preparation and goals.³⁸ In the impetus for this new convention there were seats for everyone at the table of the negotiations: governments, expert industry representatives, big trading associations, non-governmental organisations, and national and international representations.

Pragmatism³⁹ was achieved in ensuring the broadest possible international uniformity and opening for participation in the deliberations.⁴⁰

The RR are also modern and pragmatic in acknowledging new types of transport documents (especially negotiable), mirroring their ...